European Court of Human Rights

Background Information

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European Court of Human Rights building in Strasbourg

The European Court of Human Rights (ECHR) in Strasbourg was established under the European Convention on Human Rights of 1950 to monitor compliance by Signatory Parties. The European Convention on Human Rights, or formally named Convention for the Protection of Human Rights and Fundamental Freedoms, is one of the most important conventions adopted by the Council of Europe. All 47 member states of the Council of Europe are signatories of the Convention. Applications against Signatory Parties for human rights violations can be brought before the Court either by other States Parties or by individuals.

History and structure

The Court was instituted as a permanent court with full-time judges on 1 November 1998, replacing the then existing enforcement mechanisms, which included the European Commission of Human Rights (created in 1954) and the European Court of Human Rights, which had been created in 1950.

The new format of the Court was the result of the ratification of Protocol 11, an amendment to the Convention that was ratified in November 1998. The new full-time Judges were subsequently elected by the Parliamentary Assembly of the Council of Europe.

All member states of the Council of Europe have to sign and ratify the Convention. The court consists of a number of judges equal to the number of Signatory Parties, which currently stand at 47. Each judge is elected in respect of a Signatory Party by the Parliamentary Assembly of the Council of Europe. Despite this correspondence, however, there are no nationality requirements for judges (e.g. a Swiss national is elected in respect of Liechtenstein). Judges are assumed to be impartial arbiters, rather than representatives of any country. Judges are elected to six-year terms. They can be re-elected.

The court is divided into five "Sections", each of which consists of a geographic and gender-balanced selection of justices. The entire court elects a President and five Section Presidents, two of whom also serve as Vice-Presidents of the court. All terms last for three years. Each section selects a Chamber, which consists of the Section President and a rotating selection of six other justices. The court also maintains a 17-member Grand Chamber, which consists of the President, Vice-Presidents, and Section Presidents, in addition to a rotating selection of justices from one of two balanced groups. The selection of judges alternates between the groups every nine months.

Procedure

Complaints of violations by member states are filed in Strasbourg, and are assigned to a Section. Each complaint is first heard by a committee of three judges, which may unanimously vote to strike any complaint without further examination. Once past committee, the complaint is heard and decided by a full Chamber. Decisions of great importance may be appealed to the Grand Chamber. Any decision of the court has the character of a recommendation and is therefore executed on the sole discretion of the affected member states .

It is the role of the Committee of Ministers of the Council of Europe to supervise the execution of court judgments, though it has no formal means of using force against member countries in order to comply. However, the ultimate sanction of non-compliance is expulsion from the Council of Europe and thus becoming a 'pariah' state within Europe. Furthermore, the European Union takes a keen interest in the Convention and Court (and its jurisprudence) so would not look kindly upon any EU member state that did not fulfill its Convention obligations.

The Plenary Court elects the Registrar and one or more Deputy Registrars. The Registrar is the head of the Registry, which performs legal and administrative tasks and drafts decisions and judgments on behalf of the Court. The Registrar and Deputy Registrar as of 4 January 2007 are:

Erik Fribergh, Registrar

Michael O’Boyle, Deputy Registrar

Sections

Composition of the Sections (2007)

Position

Section I

Section II

Section III

Section IV

Section V

Section President

Mr C.L. Rozakis

Mrs F. Tulkens

Mr B.M. Zupančič

Sir Nicolas Bratza

Mr P. Lorenzen

Section Vice-President

Mr L. Loucaides

Mr A.B. Baka

Mr C. Birsan

Mr J. Casadevall

Mrs S. Botoucharova

Judge

Mrs N. Vajić

Mr I. Cabral Barreto

Mr J.-P. Costa

Mr G. Bonello

Mr K. Jungwiert

Judge

Mr A. Kovler

Mr R. Türmen

Mrs E. Fura-Sandstrom

Mr K. Traja

Mr V. Butkevych

Judge

Mrs E. Steiner

Mr M. Ugrekhelidze

Mrs A. Gyulumyan

Mr S. Pavlovschi

Mrs M. Tsatsa-Nikolovska

Judge

Mr K. Hajiyev

Mr V. Zagrebelsky

Mr E. Myjer

Mr L. Garlicki

Mr R. Maruste

Judge

Mr D. Spielmann

Mrs A. Mularoni

Mr D. Björgvinsson

Mrs L. Mijović

Mr J. Borrego Borrego

Judge

Mr S. E. Jebens

Mrs D. Jočienė

Mrs I. Ziemele

Mr J. Šikuta

Mrs R. Jaeger

Judge

Mr G. Malinverni

Mr D. Popović

Mrs I. Berro-Lefèvre

Mrs P. Hirvelä

Mr M. Villiger

Section Registrar

S. Nielsen

S. Dollé

S. Quesada

L. Early

C. Westerdiek

Deputy Section Registrar

A. Wampach

F. Elens-Passos

S. Naismith

F. Araçi

S. Phillips

Reform

Due to the increase in awareness of European citizens of their rights under the Convention, the Court was becoming a victim of its own success. Some cases were taking up to five years before being heard and there was a significant backlog. For example, according to the Human Rights Information Bulletin (issued by the Council of Europe), between 1 November 2003 and 29 February 2004 the Court dealt with 7315 cases, of which 6255 were declared inadmissible.

Working on the principle that ' justice delayed is justice denied', the Council of Europe set up a working party to consider ways of improving the efficiency of the Court. This resulted in an amendment to the Convention for the Protection of Human Rights and Fundamental Freedoms, Protocol 14. This new protocol, which requires universal ratification by all Council of Europe member states to come into force, makes a number of changes:

A single judge can decide on a case's admissibility. Before, three judges decided.

Where cases are broadly similar to ones brought previously before the Court, and are essentially due to a member state failing to change their domestic law to correct a failing highlighted by that previous judgement, the case can be decided by three judges rather than the seven-judge Chamber.

A case may not be admissible if it is considered that the applicant has not suffered 'significant disadvantage'. However, this is not a 'hard and fast' rule.

A member state can be brought before the court by the Committee of Ministers if that state refuses to enforce a judgment against it.

The Committee of Ministers can ask the Court for an 'interpretation' of a judgement to help determine the best way for a member state to comply with it.

Amnesty International has expressed concern that these changes to the admissibility criteria will mean individuals may lose the ability to 'gain redress for human rights violations'.

Special Case Germany

The official translation of an extract of the German Federal Constitutional Courts's decision of 14th Oct 2004 reads:

"As a result of the status of the European Convention on Human Rights as ordinary statutory law below the level of the constitution, the ECHR was not functionally a higher-ranking court in relation to the courts of the States parties. For this reason, neither in interpreting the European Convention on Human Rights nor in interpreting national fundamental rights could domestic courts be bound by the decisions of the ECtHR.”

Thus neither German State Authorities nor its judges recognize the authority and the international contract it signed of the ECtHR, whereas the relevant Article and sub-article of the treaty granting this authority read:

Article 46 - Binding force and execution of judgments

1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.

Thus it is irrelevant, how German judiciaries think the decisions of the ECtHR should be ranked in their national legal hierarchy at home: The ECtHR has, by treaty, to be obeyed. Germany is, therefore, open to sanctions to be determined by the Council of Ministers for her unilateral action.

Non-Compliance in the case Görgülü v. Germany

Despite the statement of Prof. Dr. Gertrude Lübbe-Wolff, LL.M. (Harvard), Judge of the Federal Constitutional Court, the ECtHR recognised a serious violation of the father's right to family life by prevention of the Naumburg Court of Appeal's decision of 20 June 2001 and after this the rejection of the Constitutional Complaint the German Federal Constitutional Court the father Görgülü from living with and having access to his son. Since this decision the family had to fight in 50 court cases and is already a second time at the ECtHR.

Notable cases

In December 1977, the court ruled that the government of the United Kingdom was guilty of "inhuman and degrading treatment", of men interned without trial, by the court, following a case brought by the Republic of Ireland (Case No. 5310/71). The court found that while their internment was a violation of the convention rights, it was justifiable in the circumstances; it however ruled that the practice of the five techniques and the practice of beating prisoners constituted inhumane and degrading punishment in violation of the convention, although not torture. Legally, Ireland v. United Kingdom is notable since the British government had already publicly admitted and promised to refrain from all the violations the court found it guilty of. The UK tried to argue that having done so, the Irish litigation was pointless, relying on principles of international law accepted by the ICJ; however, the ECtHR held that even though the UK had already made these admissions and undertakings, the case could still be considered, since ruling on it would serve the purposes of the development of Convention law.

In 1980, the court ruled out the foetal right to sue the mother carrying the foetus. In Paton v. United Kingdom, it was discovered that the life of foetus is "intimately connected with, and cannot be regarded in isolation from, the life of the pregnant woman".

In 2003 and 2004, the court ruled that "that sharia is incompatible with the fundamental principles of democracy" (13/02/2003) ., because the sharia rules on inheritance, women's rights and religious freedom violate human rights as established in the European Convention on Human Rights.

In 2006 the court denied admissibility of the applications of former USSR secret services operatives convicted in Estonia for Stalinist crimes against humanity after Estonia became independent in 1991.

For the first time since the Russian military invaded Chechnya in 1999, the court has agreed to hear cases of human rights abuse brought forward by Chechen civilians against Russia.

On June 21, 2007, the Court ruled that Russia was responsible for the killings of four Chechens. Russia was found guilty on the basis of eyewitness descriptions, the vehicles the perpetrators drove and their ability to travel during restricted hours.

Soering v. United Kingdom: Extradition, right against inhuman and degrading treatment

Architecture

The building, which houses the court chambers and Registry (administration), was designed by the Richard Rogers Partnership and completed in 1995. The design is meant to reflect, amongst other things, the two distinct components of the Commission and Court (as it then was). Wide scale use of glass emphasises the 'openness' of the court to European citizens.